Limiting an Overreaching Federal Government: Is State Nullification the Solution?

David Barton - 02/2010

Limiting an Overreaching Federal Government:
Is State Nullification the Solution?
A Constitutional Analysis
by David Barton

Periodically, important words and concepts are invoked that are relatively unknown today but which nevertheless have a lengthy historical and constitutional background (e.g. “attainder,” the “Exceptions Clause,” the “Sundays Excepted Clause,” the “Supremacy Clause,” etc.). The danger is that when important terms become unfamiliar to citizens, they can be severed from their original meanings and given new interpretations that not only are unwarranted by the Constitution but even negate its intent.

For example, in 1998, Bill Clinton was accused of committing perjury and obstruction of justice while president, 1 but his supporters argued that these crimes did not rise to the level of impeachable offenses because they were not “high crimes” under the Constitution. 2 (They argued that “high crimes” did not include felonies in a civil proceeding but rather criminal felonies such as treason, murder, etc. 3 ). Yet the historic definition of “high crimes” in the Constitution was a wrongdoing committed by a person in a “high” office (such as the president or a federal judge, in contrast to a local school board member or city dogcatcher). Therefore, a civil felony committed in office by the president did indeed constitute a “high crime” and definitely was an impeachable offense, but few citizens understood this because they were unfamiliar with that clause of the Constitution.

Another similarly misunderstood but recently resurrected historic term is “nullification.” The revived use of this term has been the result of widespread dissatisfaction with federal intrusion into many areas that were formerly the sole domain of the states (e.g., education, transportation, health care, energy policy, etc.). Some leaders are now advocating state nullification as a constitutional solution – that a state has the right to declare a federal law unconstitutional, thereby nullifying that law.

For example, Texas gubernatorial candidate Debra Medina asserts:

Texas must stop the overreaching federal government and nullify federal mandates in agriculture, energy, education, healthcare, industry, and any other areas D. C. is not granted authority by Article I, Section 8 of the U. S. Constitution….It is our duty as a state to recognize when Washington D. C. is stepping outside its constitutional bounds. Jefferson further commented that nullification by the states of all unauthorized acts is the rightful remedy….We must use the tools of nullification and interposition aggressively. 4

I think it’s a great idea….[I] think it’s going to grow in importance. And I think it’s going to grow because the government, the federal government will be seen as inept and ineffective. And I think it’ll almost be de facto in the sense that the states will eventually just ignore some of the mandates. 5

Did the Founding Fathers – the Framers of our government – give states the constitutional power to nullify federal laws?As will be seen in the historical evidence presented below, the answer is an unequivocal “No!”; they did not give that power to states. In fact, every major Founder condemned this type of state nullification – including Thomas Jefferson, who is wrongly invoked above as approving it.

Notwithstanding this fact, there is little doubt that they took definite steps to ensure that the federal government would not intrude into state issues through the Tenth Amendment to the Constitution:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Under the Tenth Amendment, everything not specifically enumerated in the Constitution was to remain the purview of the states. As explained by Thomas Jefferson (on numerous occasions):

I consider the foundation of the Constitution as laid on this ground: that “all powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states or to the people.”…To take a single step beyond the boundaries thus specially drawn around the powers of Congress is to take possession of a boundless field of power, no longer susceptible of any definition. 6

The capital and leading object of the Constitution was to leave with the states all authorities which respected their own citizens only, and to transfer to the United States those which respected citizens of foreign or other states….Can any good be effected by taking from the states the moral rule of their citizens and subordinating it to the general [federal] authority?...Such an intention was impossible and...[would] break up the foundations of the Union…. I believe the states can best govern our home concerns, and the general [federal] government our foreign ones. I wish, therefore…never to see all offices transferred to Washington, where, further withdrawn from the eyes of the people, they may more secretly be bought and sold as at market. 7

Our country is too large to have all its affairs directed by a single [federal] government. Public servants at such a distance, and from under the eye of their constituents, must, from the circumstance of distance, be unable to administer and overlook all the details necessary for the good government of the citizens and...will invite the public agents to corruption, plunder, and waste. 8

James Madison agreed. In fact, in 1792 when a proposal was made for the federal government to bailout a failing industry and prop it up with federal subsidies, Madison condemned that measure, first noting:

[T]hose who proposed the Constitution conceived [i.e., believed]… (and those who ratified the Constitution conceived) that this is not an indefinite [unrestricted] government…but a limited government tied down to the specified powers….It was never…supposed or suspected that the old Congress could give away the money of the states to bounties to encourage agriculture, or for any other purpose they pleased. 9

Madison then warned that if the federal government was not kept limited, it would soon usurp state jurisdictions:

If Congress can employ money indefinitely to the “general welfare,” and are the sole and supreme judges of the “general welfare,” [then Congress might] take the care of religion into their own hands; they may appoint teachers in every state, county, and parish and pay them out of their public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may assume the provision for the poor; they may undertake the regulation of all roads other than [the] post-roads; in short, everything from the highest object of state legislation down to the most minute object of police would be thrown under the power of [the federal] Congress. 10

Justice Joseph Story (a “Father of American Jurisprudence”) affirmed the same constitutional design in his classic 1833 Commentaries on the Constitution of the United States (a three-volume work still used by Congress and courts today). Of the Tenth Amendment, Story explained:

Being an instrument of limited and enumerated powers, it follows irresistibly that what is not conferred is withheld and belongs to the state authorities….All powers not delegated…and not prohibited are reserved [to the states]. 11

Given the Framers’ clear vision of a small and limited federal government, how did it become so large and all-encompassing? The first reason had been foreseen by Founding Father Samuel Adams (“The Father of the American Revolution”), who cautioned:

If the liberties of America are ever completely ruined…it will in all probability be the consequence of a mistaken notion of prudence which leads men to acquiesce in measures of the most destructive tendency for the sake of present ease. 21

The first step in losing control of the federal government was that it became easier and more convenient to “acquiesce” (i.e., give in) and let the federal government begin doing things never before permitted. The federal government then felt emboldened to enter additional areas – or to use a description provided by Thomas Jefferson, it began “working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped.” 22

This is the current situation, and citizens do not like it:

64% of Americans believe that government is too big (6% believe it is too small, and only 25% believe that it is “the right size”), and only 35% believe that the government is operating in line with the U. S. Constitution. 23

When asked to identify the biggest threat to the future of the country, 55% identified big government, 32% big business, and 10% big labor. 24

70% of Americans favor “smaller government with fewer services and lower taxes” rather than “a more active government with more services and higher taxes.” 25

Given the current public sentiment, state nullification (also historically called interposition) holds forth the promise of being a silver bullet – a proverbial wooden stake that can be driven through the heart of what many see as a growing federal monster.

But is state nullification actually a solution? As noted by Sir Francis Bacon in 1625, there are times when a remedy can be worse than the disease; so is state nullification a constitutional remedy or a constitutional disease? The answer is unequivocally provided by an historical review of the attempted use of state nullification over the past two centuries.

Of those many attempts, the one most frequently invoked by today’s nullification supporters is that which occurred during the John Adams presidency. Adams was a leader of the Federalist Party, generally seen as wanting to strengthen the power of the federal government. Thomas Jefferson, his Vice-President, was the acknowledged leader of Anti-Federalist Party (also called the Republicans), who wanted to see a small and limited federal government, with most power remaining with the states. During the Adams presidency (1797-1801), the Federalists were in ascendency, holding not only the presidency but also Congress; and probably the most notable event of the Adams presidency was the XYZ Affair.

During Washington’s presidency (when John Adams was Vice-President), France and Great Britain had been at war, so Great Britain blockaded American ships coming to Europe, thus straining relations between Great Britain and America. In 1794, John Jay negotiated a treaty with the British (known as the Jay Treaty) to ease the growing tensions as well as settle disputes remaining from the American Revolution. When the Jay Treaty was ratified in 1796, the French (still at war with the British) responded by seizing 300 American ships bound for British ports.

In 1797, President Adams, in an attempt to prevent war, dispatched three diplomats to negotiate with French officials. But before the Americans were permitted to meet with those officials, French agents demanded as pre-conditions: (1) a formal apology from President Adams, (2) a $10-million low-interest loan to the French government, and (3) a $250,000 personal bribe to the French foreign minister, Charles Tallyrand. Of course, the Americans refused.

The French threatened an invasion of the United States and continued to seize American ships. Congress therefore authorized a military buildup and began preparations for war, but Adams’ Anti-Federalist opponents believed he was exaggerating the situation and demanded proof of his claims. Adams released an official report, including the diplomatic correspondence in which the actual names of the French agents were withheld, being identified only as W, X, Y, and Z.

Americans were outraged, and while a formal declaration of war against France was narrowly averted, an unofficial naval war nevertheless occurred (now called the Quasi War), which lasted from 1797 until 1800. France eventually relented and signed a treaty with America in 1800.

One of the factors that had early exacerbated the tensions between America and France had been the unscrupulous effort of French citizens living in America (such as Edmond-Charles Genêt), who had worked against American government, attempting to stir up American citizens to bypass their government and become directly involved in the conflict between the French and British. In 1798 at the height of tensions between France and America, Congress passed four federal laws designed to control the activities of foreigners in America during a time of national danger and impending war. Those laws, known as the “Alien and Sedition Acts,” included:

The Naturalization Act, extending the residency period from 5 to 14 years for aliens seeking citizenship.

The Alien Friends Act, allowing the expulsion of aliens deemed dangerous during peacetime.

The Alien Enemies Act, allowing the expulsion or imprisonment of aliens from a country with which America was at war if those aliens were deemed dangerous.

The Sedition Act, authorizing fines or imprisonment for individuals who issued “false, scandalous, and malicious writing” against the government or its officials, whether Congress or the president

The Alien Acts were never enforced but the Sedition Act was, with twenty-five individuals being arrested, and ten convicted and imprisoned. Jefferson’s Anti-Federalists saw this law as directly attacking them, for they had been openly critical of the president and Congress and most of those arrested and charged by Federalist sheriffs and judges had been Anti-Federalists.

(The Acts eventually caused the public to turn against the Federalists, greatly assisting in Jefferson and the Anti-Federalists taking control of government in 1801. When Jefferson became president, he immediately pardoned all those convicted under the Sedition Act. The Naturalization Act was repealed in 1802, and the other two acts were allowed to expire without having been used.)

During the height of the Anti-Federalist opposition to the Alien & Sedition Acts, Jefferson (Adams’ Vice President) had secretly written for the legislature of Kentucky (a new state recently formed from the territorial holdings of Virginia) a resolution that condemned the Acts as unjust exercises of federal powers; 26 James Madison wrote a similar resolution for the Virginia legislature, 27 and the two resolutions were adopted by their respective legislatures. The Kentucky Resolution declared that the federal Alien & Sedition Acts were “altogether void and of no force; and that the power to create, define, and punish such other crimes is reserved and of right appertains solely and exclusively to the respective states, each within its own territory”; the Virginia Resolution similarly declared that “the acts aforesaid are unconstitutional.” 28

Modern nullification advocates invoke these Resolutions as today’s precedent for individual states nullifying federal laws on issues such as health care, cap and trade, etc., but today’s supporters omit the rest of the story about the Resolutions, and what is omitted is actually much more important than the part they tell.

Significantly, Virginia and Kentucky had not sought to act alone as individual states. To the contrary, they submitted their proposal to the other states for their approval and joint action. But the other states, upon receiving those nullification resolutions, soundly condemned them. Their explanations for rejecting them centered around three common concerns.

1. The proper authority for ascertaining the constitutionality of federal laws was federal courts, not state legislatures. As Vermont explained:

[T]he General Assembly of the State of Vermont do highly disapprove of the resolutions of the General Assembly of Virginia as being unconstitutional in their nature and dangerous in their tendency. It belongs not to state legislatures to decide on the constitutionality of laws made by the general [federal] government, this power being exclusively vested in the judiciary courts of the Union. 29 (emphasis added)

2. Such actions by state legislatures abrogate the federal election process set forth in the Constitution for expressing the “consent of the governed” at the national level; federal laws reflect the will of the majority of states while nullification reflects the will of only one, or a few states:

The Legislature of Massachusetts….deem it their duty solemnly to declare that while they hold sacred the principle that the consent of the people is the only pure source of just and legitimate power, they cannot admit the right of the state legislatures to denounce the administration of that [federal] government to which the people themselves, by a solemn compact [the Constitution], have exclusively committed their national concerns….That the people in that solemn compact (which is declared to be the supreme law of the land [Article VI, Paragraph 2 of the Constitution]), have not constituted the state legislatures the judges of the acts or measures of the federal government. 31

3. A phrase used by multiple state legislatures was that the Kentucky and Virginia Resolutions were “of a dangerous tendency.” 33 Why? Because not only did they negate the “consent of the governed” at the federal level but they also set the precarious precedent of allowing a state to invalidate any federal law with which it disagreed, for any reason. As insightfully explained by the Massachusetts legislature:

[S]hould the respectable state of Virginia persist in the assumption of the right to declare the acts of the national government unconstitutional, and should she oppose successfully her force and will to those of the nation, the Constitution would be reduced to a mere cipher – to the form and pageantry of authority without the energy of power. Every act of the federal government which thwarted the views or checked the ambitious projects of a particular state or of its leading and influential members would be the object of opposition and of remonstrance, while the people – convulsed and confused by the conflict between two hostile jurisdictions and enjoying the protection of neither – would be wearied into a submission to some bold leader who would establish himself on the ruins of both. 34

While the Kentucky and Virginia resolutions did propose the right of the collective states to nullify a federal law with which they disagreed, the other states rejected that proposition, so the resolutions were dropped. (Significantly, as will be seen below, both Jefferson and Madison later denounced as unconstitutional any nullification attempt whereby a state, or small group of states, attempted to act individually against the expressed will of the other states enacted through the federal Congress.)

Significantly, Founding Fathers such as George Washington deplored the Virginia and Kentucky Resolutions, lamenting to Patrick Henry that they had been the action of “a certain party among us to disquiet the public mind…[and] set the people at variance with their government.” 35 He specifically bemoaned that “the State of Virginia has taken the lead in this opposition,” 36 but he did take consolation in the fact that the rest of the United States had rejected the measure, rejoicing that “in no state (except Kentucky, that I have heard of) has legislative countenance [approval] been obtained beyond Virginia.” 37

Yet the Virginia and Kentucky Resolutions were not the first (nor the last) attempt by a state or citizens to express their displeasure with a federal law by “nullifying” it. The first occurred during the presidency of George Washington.

In 1791, the federal government enacted a tax on whiskey as a means of helping pay down the national debt from the American Revolution. In 1794 when parts of Pennsylvania and Virginia revolted against that tax, President Washington personally led the military against them to demonstrate that the federal authority as constituted by all the states prevailed over the regional predilections of just one or two states. As Washington affirmed, America was “an indissoluble union of the states under one federal head” and that “the glorious fabric of our independency and national character must be supported.” 38

According to Washington, it had been completely appropriate for him to “take measures” because the state rejection of a federal law was not only an action “employed in propagating principles of anarchy” but was also dangerous because the “government is set at defiance.” 39 To Washington, the real issue was “whether a small portion of the United States shall dictate to the whole Union,” 40 and the obvious answer was no, but this did not prevent further attempts. In fact, nullification attempts also occurred in reaction to federal laws passed under presidents Thomas Jefferson and James Madison.

During Jefferson’s presidency, Great Britain (at war with France – again) not only illegally impressed American citizens as British sailors but also attacked an American ship at Norfolk, Virginia. Tensions between the two nations grew and negotiations ensued, but Secretary of State James Monroe was unable to reach a satisfactory agreement. In an effort to punish Great Britain as well as prevent American involvement in the Napoleonic Wars in Europe, Congress passed the Embargo Act of 1807, containing two major provisions: (1) American ships were banned from traveling to foreign ports (unless personally approved by President Jefferson); and (2) in order to ensure compliance with the first provision, American ships were required to post a bond equivalent to the value of the ship and cargo. This Act imposed such an economic hardship on American shipping that compliance was low; in 1808, Congress therefore passed a new embargo act requiring American ships to post a bond for double the value of the ship and cargo.

Those Acts were highly unpopular in New England, where shipping was the heart of their economy. Strangely, while those acts prohibited American ships from trading in foreign ports, foreign ships (including English ones) were free to come to American ports; the Acts therefore hurt American trade but helped British trade. The result of the Embargo Acts was an economic disaster that created a regional depression and produced extremely high unemployment in New England. Attempting to circumvent those restrictions, American smuggling skyrocketed, so in early 1809, Congress passed the Enforcement Act, authorizing the military to enforce the federal Acts. The Massachusetts Legislature nullified the Enforcement Act, announcing that it was “not legally binding,” but the issue became moot, for only three days before Jefferson left office, he repealed the acts.

Shortly after Madison became President in 1809, he signed the Non-Intercourse Act that validated Jefferson’s repeals while maintaining the embargoes against Great Britain and France. Consequently, much of the problem continued, for Great Britain and France still enjoyed the benefits of trading in America without American shipping enjoying the same reciprocal benefits abroad. Discontent was thus kept alive in New England.

Furthermore, the tensions already existing between America and Great Britain increased, with the British offering direct assistance to Indians attacking Americans, interfering with American shipping to non-embargoed ports, and continuing to forcibly impress American citizens into the British navy. Unable to resolve these conflicts, in 1812 Congress called on governors to organize the state militias and then officially declared war.

Support for the War of 1812 was largely along party lines, with the Anti-Federalists generally supporting it and the Federalists generally opposing it. The Federalists even called it “Mr. Madison’s War,” blaming it on a string of inept government actions by the Anti-Federalists (i.e., the Republicans).

Massachusetts pledged its efforts to thwart every action of Congress relating to the war, declaring that it would not fight in any war where the state of Massachusetts had not been specifically attacked on its own soil. The Supreme Court of Massachusetts also announced that any state governor could nullify a declaration of war made by the federal government. Both Massachusetts and Connecticut withheld their state militias from being used to repel the British invasion.

President Madison specifically reprobated these actions in his 1812 address to Congress:

Among the incidents to the measures of the war, I am constrained to advert [turn attention] to the refusal of the governors of Massachusetts and Connecticut to furnish the required detachments of militia toward the defense of the maritime frontier. The refusal was founded on a novel and unfortunate exposition of the provisions of the Constitution relating to the militia. 41

The war nevertheless continued, remaining extremely unpopular among Federalists. Therefore, late in the war in December 1814 and January 1815, a convention of twenty-six Federalist leaders from Massachusetts, Connecticut, Rhode Island, New Hampshire, and Vermont met in Hartford, Connecticut, to consider measures to limit the power of the Anti-Federalists. They specifically rejected secession but did: (1) propose a separate peace treaty between New England and Great Britain, (2) issue a report condemning “Mr. Madison’s War,” (3) make three direct demands on Congress, and (4) propose seven constitutional amendments, including one to change presidential elections so that presidents could serve only one term, and two consecutive presidents could not be elected from the same state 42 (Presidents Madison and Jefferson had both served two terms, had both been from Virginia, and were both viewed by the Federalists as enemies.)

Significantly, other states, such as South Carolina, denounced the efforts of the Hartford Convention as “traitorous.” 43 Even ex-president John Adams (himself a Federalist) had deplored the Federalist nullification attempts, specifically denouncing the Hartford Convention as an “inquisition” just as wrong as had been the conduct of bloody Robespierre during the French Revolution. 44

The War of 1812 ended shortly after the Hartford Convention, so none of its measures gained traction; nevertheless, citizens across New England strongly disapproved of its actions, thus ensuring the eventual and permanent demise of the Federalists as a political party.

Subsequent attempts at state nullification occurred during the 1820s, involving first Georgia, and then South Carolina. The Georgia attempt revolved around federal measures related to the protection of Indian tribes in the state.

During colonization, Georgia bought much of its lands from the Indians. In 1802, it ceded its claim to western territorial lands to the federal government in exchange for a cash payment and the United States agreeing to settle with the Indians all remaining claims to tribal lands in Georgia. Much progress was made by the federal government in this regard until about 1820, when several unscrupulous whites urged the Indians to create a separate state within Georgia.

Facing that internal threat, the Georgia legislature pushed President Monroe to finish settling Indian claims in Georgia, so in February 1825, just before he left office and using great pressure, he got the Indian chieftains to cede the remaining lands. When that treaty was ratified by the U. S. Senate, Georgia immediately began surveying the new lands, but the Indians resisted, claiming that the treaty had been improperly negotiated.A number of the chiefs approached the new President, John Quincy Adams, asserting that the agreement had been fraudulently pressed upon them; the government’s own federal Indian agent (who had been present at the signing of the previous treaty) agreed. President Adams therefore instructed Georgia to cease from surveying until the dispute was settled.

(Article I, Section 10 of the Constitution stipulates that only the federal government can negotiate treaties with Indian tribes, and Article VI, Paragraph 2 of the Constitution specifically makes those Indian treaties part of the “supreme law of the land,” unequivocally placing them above state courts and state law.)

The governor refused to heed Adams’ order and sought approval from the state legislature to resist the federal government with armed force. But when President Adams sent the U. S. military to Georgia, Georgia backed down.

In January 1826, a new agreement was signed with the Indians, this time with their full approval. The Adams administration then notified Georgia that all claims had been settled, but the U. S. Senator from Georgia claimed there was a million acres shortfall. The Georgia governor therefore ordered surveyors to include a million acres in their survey, but the Indians resisted the surveyors on that acreage and appealed again to President Adams.

Adams ordered federal marshals to arrest anyone caught surveying in that area. Significantly, the policy pursued by Adams was a policy which Thomas Jefferson had strongly approved. As Jefferson had explained:

[T]he Indians have a right to the occupation of their lands, independent of the states within whose chartered lines they happen to be – that until they cede them by treaty (or other transaction equivalent to a treaty), no act of a state can give a right to such lands; that under the Constitution. . . [no] state or person [has] a right to treat with the Indians without the consent of the general [federal] government; . . . that the government is determined to exert all its energy for the patronage and protection of the rights of the Indians . . . and that if any settlements are made on lands not ceded by them without the previous consent of the United States, the government will think itself bound not only to declare to the Indians that such settlements are without the authority or protection of the United States but to remove [the settlers] also by the public force. 45

Nevertheless, the Georgia governor retaliated against Adams' order that federal marshals arrest offending parties by ordering all state law officers to arrest any federal marshal who attempted to arrest surveyors, and to release anyone arrested by the federal government. The governor also ordered the state militia to prepare to resist the threatened invasion of United States forces.

This time, it was President Adams who backed down. Georgia therefore moved forward, subjugating the Indians under Georgia jurisdiction or forcing them to leave the state. Georgia even ordered the imprisonment of the Rev. Samuel A. Worcester of Vermont, who lived among the Indians as a missionary. Worcester sued to the Supreme Court, who ruled in his favor and ordered his release, 46 but the governor declared that federal courts were incompetent to settle the matter and refused to obey the order. 47

The Georgia attempt at nullification was the only attempt of the many nullification efforts to be partially successful, and that was only because President Adams had backed down.

South Carolina was the next to attempt nullification, focusing its opposition around three issues.

The first was that of slavery. In 1820, Congress passed the Missouri Compromise, attempting to conciliate southern pro-slavery interests with northern anti-slavery interests. The Missouri Compromise repealed the 1789 law (signed by George Washington) which had forbidden slavery in any federal territory; the new compromise allowed slavery to begin moving into certain federal territories while continuing to prohibit it in others. Yet contrary to the optimistic predictions made during the compromise, the law actually fueled the sectionalism already present by energizing abolition forces in the north to fight the spread of slavery into new territories that had previously forbidden it; the compromise thus further polarized the nation along political and regional lines.

The second issue was that of public lands and westward expansion. In 1820, Congress passed measures to encourage western settlement by reducing the price and minimum requirements for the purchase of western lands, but disagreement arose over how to disperse the proceeds received by the federal government for the sales of those lands. Henry Clay of Kentucky proposed distributing the proceeds from the sale of public lands to the states, but Thomas Hart Benton of Missouri proposed gradually reducing the price of land until the federal government simply gave it away.

The third issue was that of protective tariffs. In 1828, Congress passed a tariff bill to protect American industry from being driven out of business by lower priced European (and especially lower priced British) goods. (The 1828 bill, passed under President John Quincy Adams, was merely the continuation of an 1816 federal law that had been enacted for the “protection and encouragement of American industry.” 48 ) Critics claimed the 1828 law helped manufacturing interests (which predominated in the northeast) but not agricultural ones (which predominated throughout the south).

In 1829 after Andrew Jackson became President and John C. Calhoun Vice-President, a Senator Samuel Foot of Connecticut proposed that the sale of federal lands in the west be halted. Senator Benton claimed that this was just another attempt to help northeastern manufacturing states by keeping their workers from moving west, which would raise their manufacturing costs. Benton’s claim prompted Senator Robert Hayne of South Carolina to call for an alliance of southern and western states to join against the northeast. He urged state nullification of any federal law they believed would weaken their interests.

In late January 1830, Senator Daniel Webster of Massachusetts responded to Hayne with one of the most famous speeches and recognizable lines in American history. In a debate that lasted more than a week on the Senate floor, Webster pointed out that the United States was not just a confederation of states but instead was the creation of the people, and that the people had placed ultimate power and sovereignty in the Constitution and in the federal government it had created. Webster, like the Founders before him, argued that if a state disapproved an action of the federal government, it had a right to seek redress in federal court or to amend the Constitution, but it had no constitutional right simply to nullify a federal law – that to do so would produce anarchy and eventually could result in a sectional or a civil war. In fact, he predicted that nullification would cause the Union to dissolve and that the American flag, “drenched…in fraternal blood,” would wave over “the broken and dishonored fragments of our once glorious empire.” 49 Webster then proclaimed the famous words that were to resound throughout history – that it was wrong to think that Americans could have “liberty first, and union afterwards,” but that the proper view was “Liberty and Union – now and forever, one and inseparable.” 50

Hayne’s promotion of nullification led to a fissure between President Andrew Jackson and Vice President John C. Calhoun. In fact, in April 1830, only weeks after Webster’s debate against Hayne, Jackson and Calhoun directly contradicted each other in public over the issue. In 1831, President Jackson reorganized his cabinet to rid himself of Calhoun supporters, and in 1832, Calhoun resigned as vice-president to become U. S. Senator from South Carolina.

From that point, South Carolina set itself vigorously to oppose any measure that it felt strengthened the federal government and actively sought an opportunity to invoke nullification, finally choosing the protective tariff as the focal point of its attack.

Attempting to lay groundwork for the upcoming fight, Calhoun invoked the Kentucky and Virginia Resolutions, explaining:

This right of interposition, thus solemnly asserted by the State of Virginia, be called what it may – state right, veto, nullification, or by any other name – I conceive to be the fundamental principle of our system. 51

However, Calhoun went well beyond what had been proposed by Virginia and Kentucky, for rather than proposing that all the states unite in opposition, he asserted that if only one state “vetoed” any federal law, then that federal law could become valid only through a constitutional amendment ratified by three-fourths of the other states. Thus, according to Calhoun, the opinion of one state could be overridden only by three-fourths of the other states – and then, only through a constitutional amendment.

South Carolina’s attack on the federal government finally came in 1832, and ironically, it came after Congress passed a bill lowering the protective tariff of 1828. (The revenue generated by the sale of western lands combined with the receipts received from the 1828 tariff generated enough income that the national debt was completely retired for the first time in American history; so because the government had its first-ever surplus, it had moved to lessen government income by reducing tariffs.) Even though the 1832 bill lowered the tariff, it still preserved the theory of protection, and since South Carolina believed the manufacturing states were the primary beneficiaries, it declared the tariff bills of both 1828 and 1832 null and void; 52 it even raised an army to defend its assertion of nullification. 53

John C. Calhoun, who had become the national evangelist for the resurrected maldoctrine of nullification, also may have been the first prominent historical revisionist, for he had deliberately rewritten American history by claiming that nullification and state supremacy over the federal government was approved by the Founding Fathers – a claim disproved, ironically, even by the Founding Fathers of Calhoun’s own state. David Franklin Houston (1866-1940), a noted academic who graduated from the University of South Carolina and who led five major universities during his life, accurately pointed out:

Charles Pinckney, Charles Cotesworth Pinckney, John Rutledge, and Pierce Butler were South Carolina’s delegates to the Constitutional Convention. Of these, the two Pinckneys and Rutledge were decidedly in favor of establishing a strong national government capable of effectively executing its acts and of dispensing its benefits and protection. The two Pinckneys could scarcely find language sufficiently forcible to express their condemnation of the doctrine that the states were separately and individually sovereign. The entire delegation…advocated making the acts of Congress the supreme law of the several states [see Elliot, Debates, IV. 301]….Such sentiments were not only expressed in the Constitutional Convention but were also uttered with even more emphasis in the [South Carolina] State [Ratification] Convention itself….Charles Cotesworth Pinckney boldly proclaimed that attempts to weaken the Union by pretending that each state was separately and individually independent were political heresies which would produce serious distress. “The separate independence and individual sovereignty of the several states was never thought of by the enlightened band of patriots who framed this declaration [i.e., the Constitution]” [Elliot, Debates, IV. 301]. 54

Calhoun (and others) who wrongly asserted that the theory of nullification was valid did so because they viewed the United States not as a nation per se but rather only as a voluntary and temporary loosely knit association of individually sovereign states that had a right to nullify within its own state boundaries any actions of the federal government with which it disagreed. While Calhoun claimed this was the view of the Founding Fathers, it definitely was not – a point made especially clear in the Federalist Papers (penned by leading Founding Fathers John Jay, Alexander Hamilton, and James Madison). As explained by Houston:

A careful reading of the Federalist – a rational comparison of its various parts – reveals as to essential matters a consistent body of principles in support of the proposition that the States were not, when the Constitution was framed, and had never been, separate and independent sovereigns. There would be little disposition to question the correctness of this statement so far as Jay and Hamilton are concerned. If, however, confirmation were wanted as to Madison’s views, it would be necessary only to refer to his expressions in the Constitutional Convention itself. Language could scarcely be more explicit. “Some contend that the States are sovereign, when in fact they are only political societies. There is a gradation of power in all societies, from the lowest corporation to the highest sovereign. The States never possessed the essential rights of sovereigns. These were always vested in Congress. Their voting as States in Congress is no evidence of sovereignty. The State of Maryland voted by counties. Did this make counties sovereign? The States, at present, are only great corporations, having the power of making by-laws, and these are effective only if they are not contradictory to the general [Union].”…Madison, with Jay and Hamilton, contended that even under the Confederation a Union existed which could exercise powers that no State could legally obstruct – a Union whose bonds no State could legally throw off. The authors of the Federalist speak not of establishing a union, but of preserving the Union and of the evils that would result from its dismemberment. 55

Returning to South Carolina, following its 1832 action to raise an army to enforce its nullification decision, President Jackson declared nullification illegal 56 and sought congressional approval to use force to ensure that federal law was executed. 57 Congress agreed and promptly passed a Force Act, under which Jackson dispatched the military to Charleston, South Carolina.

President Jackson, unlike President John Quincy Adams before him, was definitely not going to back down, so in 1833, Senator Henry Clay of Kentucky (who had misguidedly engineered the Missouri Compromise of 1820) sought to engineer a compromise between the United States and South Carolina to reduce the fever-pitched tensions between the two. Clay persuaded Congress to further reduce the tariffs, and so South Carolina rescinded its nullification ordinance against the tariff bills (but it then belligerently and defiantly adopted an ordinance nullifying the Force Act).

One of the most notable commentators on this national crisis was an elderly President James Madison, who recorded his observations in his lengthy “Notes on Nullification.” 58 To help observers understand the beliefs associated with the maldoctrine of state nullification (or interposition), he recommended:

That [if] the doctrine of nullification may be clearly understood, it must be taken as laid down in the report of a special committee of the House of Representatives of S. C. in 1828. In that document it is asserted that a single state has a constitutional right to arrest the execution of a law of the U. S. within its limits – that the arrest is to be presumed right and valid and is to remain in force unless ¾ of the states, in a convention, shall otherwise decide. 59

Madison then unequivocally condemned nullification, noting that “a more fatal inlet to anarchy cannot be imagined” and that nullification was “a deadly poison” to the Constitution. 60 He especially denounced South Carolina’s attempts to invoke his own Virginia Resolution and Jefferson’s Kentucky Resolution as the basis of state nullification efforts:

The true question therefore is whether there be a constitutional right in a single state to nullify a law of the U. S. We have seen the absurdity of such a claim in its naked and suicidal form….The amount of this modified right of nullification is that a single state may arrest the operation of a law of the United States and institute a process which is to terminate in the ascendancy of a minority over a large majority in a republican system – the characteristic rule of which is that the majority will is the ruling will! And this newfangled theory is attempted to be fathered on Mr. Jefferson – the Apostle of Republicanism – and whose own words declare that “acquiescence in the decision of the majority is the vital principle of it [i.e., constitutional republicanism].” 61 (emphasis added)

John Quincy Adams agreed, and further added that nullification was used for a “monstrous and horrible object” 62 and that it was “portentous and fatal…to the prospect and welfare of this Union.” 63 Madison and Adams thus joined the presidents before them (George Washington, John Adams, and Thomas Jefferson) in denouncing state nullification.

When President Andrew Jackson retired, he looked back over the nullification crisis and first praised the Constitution and then forcefully repudiated the maldoctrine of nullification:

These cheering and grateful prospects and these multiplied favors we owe, under Providence, to the adoption of the Federal Constitution. It is no longer a question whether this great country can remain happily united and flourish under our present form of government….But in order to maintain the Union unimpaired it is absolutely necessary that the laws passed by the constituted authorities should be faithfully executed in every part of the country, and that every good citizen should at all times stand ready to put down, with the combined force of the nation, every attempt at unlawful resistance under whatever pretext it may be made or whatever shape it may assume….It is impossible that any government can continue to exist upon any other principles. It would cease to be a government and be unworthy of the name if it had not the power to enforce the execution of its own laws within its own sphere of action. 64

It was significant that no other state – not even any other southern state – stood with South Carolina in its belligerent refusal to follow the rule of federal law. After all, every measure South Carolina protested had been legitimately passed by the entire Congress through the process directed by the Constitution; it was simply that South Carolina disagreed with the result. In fact, in 1851 after the abolition movement began to spread into all quarters of the nation following the passage of the 1850 Fugitive Slave Law, South Carolina even urged secession, but no other state would join her at that time. It was not until after the election of 1860 when Republicans gained both the presidency and the Congress that the other ardent pro-slavery states saw the proverbial handwriting on the wall regarding abolition and thus joined together in secession. 65

But secession came as no surprise, for it was merely the mature fruit produced by the anarchic maldoctrine of nullification. And secession, just like state nullification, had been deplored by the Framers. As Thomas Jefferson had early declared:

I fear, from an expression in your letter, that the people of Kentucky think of separating not only from Virginia [i.e., to become a separate state] (in which they are right), but also from the [United States]. I own I should think this a most calamitous event and such a one as every good citizen should set himself against. 66 (emphasis added)

Jefferson expressed the same position against secession during the discussions over the Alien & Sedition Acts; 67 and during the War of 1812 when talk of secession was again raised, Jefferson repeated his condemnation.

Other Founders similarly deplored secession, including George Washington, 68 James Madison, 69 Alexander Hamilton, 70 and many others. But the Framers not only denounced secession but they also recognized that it proceeded from the maldoctrine of state nullification and hyper state sovereignty.

With the close of the Civil War, it was widely believed that the maldoctrine of nullification had finally and permanently been put to rest. However, such was not the case. In fact, in 1954 when the U. S. Supreme Court struck down desegregation in Brown v. Board of Education, 71 eight southern states invoked nullification (i.e., interposition), including Louisiana. 72 In 1960 when the Louisiana case reached the Supreme Court, the Court ruled “that interposition [nullification] is not a constitutional doctrine. If taken seriously, it is illegal defiance of constitutional authority” 73 (emphasis added). Yet now, fifty years later, this reprehensible maldoctrine is once again being resurrected.

The frustration behind modern nullification talk can be easily understood; and even though many may sympathize with its overall objectives, every citizen who loves his country and his Constitution must renounce, reject, and oppose this maldoctrine, boldly confronting it in every venue where it raises its venomous head.

Nullification is the hallmark of selfishness and anarchy; and selfishness and anarchy, whether by citizens or states, is not a cherished American virtue. To the contrary, a characteristic of America’s greatness has been an unwavering dedication not only to follow the rule of law but also to expend as much time and energy necessary, no matter how long it takes, to make needed changes through the constitutional process, whether by the use of courts or through elections. While this is admittedly a much slower process, there is never an end-around for doing what is right, nor can right be secured by pursuing wrong.

(As an aside, there are some constitutional efforts being made to nullify – or remove the effects of – federal law, but these legitimate efforts are quite different from the state nullification movement. For example, many of the effects of the federal Roe v. Wade policy are being “nullified” through the passage of parental consent, informed consent, ultrasound, and other pro-life laws. Similarly, many states are passing laws that “nullify” the effects of federal gun control laws. Other states are pursuing action in federal courts to “nullify” healthcare, cap & trade, etc. All of these measures are praiseworthy and are quite different from the currently emerging nullification movement.)

So, in reviewing the history of the maldoctrine of state nullification, there have been several attempts to invoke this practice, and in each case, it was the attempt of a minority group to thwart the decision of the majority of states as enacted through the federal Congress. George Washington explained why this was always an improper response:

[T]he fundamental principle of our Constitution…enjoins [requires] that the will of the majority shall prevail. 74

It was for the same constitutional reason that John Quincy Adams condemned nullification:

Democracy is self-government of the community by the conjoint will of the majority of numbers. What communion – what affinity can there be – between that principle and nullification?...Never – never was amalgamation so preposterous and absurd as that of nullification and democracy! 75

While the losing side may sincerely believe that a law passed by Congress is unconstitutional, that opinion does not authorize them to pick and choose which federal laws they will obey. In fact, if the proposed policy of state nullification were to take hold today, the results would be completely inane. Consider, for example, that if Congress passed a law to encourage offshore drilling by states, a state such as Connecticut would nullify it; but if Congress passed a law prohibiting offshore drilling by states, then Alaska would likely nullify it. Similarly:

A federal law enforcing prohibitions against illegal immigration would likely be nullified by California, but a law easing immigration restrictions would be nullified by Oklahoma.

A federal law increasing gun control restrictions would be nullified by Arizona, but a law easing gun control restrictions would be nullified by Illinois.

A mandatory climate-change cap and trade law would be nullified by Texas, but one permitting state options would be nullified by Minnesota.

A law to protect marriage as the union of one man and one woman would be nullified by Massachusetts, but a law granting full partnership rights to homosexuals would be nullified by Alabama.

A federal law banning abortion would be nullified by New York, but a law expanding abortion would be nullified by South Dakota.

There will always be a losing side on every federal law, and some state will always disagree with every law passed, but under nullification, the losing side would always win.

The losing side in any federal issue has two constitutional recourses available: (1) it can attempt to convince a majority of the nation that the law is unconstitutional and they can then remedy that law with a corrective measure in Congress (see Federalist #44 76 ) – as was done in many of the cases above; or (2) it can seek to have the federal law declared unconstitutional by the federal courts.

Whenever the minority loses to the majority, the proper response was set forth by Samuel Adams who, like all others, at times found himself on the losing side of an issue:

[A]s it becomes a citizen, I will acquiesce in the choice of a majority of the people. 77

Nullification places minority power above majority power. The majority may sometimes be wrong, but when that occurs, Washington reminded Americans that changes must be made only by using “the way which the Constitution designates. But let there be no change by usurpation; for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed.” 78 Very simply, don’t try to fix the Constitution by breaking it; fix the Constitution through the means it provides, and nullification is not that means. Nullification is a dangerous anarchic maldoctrine, cancerous and toxic to the health and vigor of a constitutional republic.

9. Jonathan Elliott, The Debates in the Several State Conventions on the Adoption of the Federal Constitution (Washington, 1836), Vol. IV, p. 428, James Madison on “The Cod Fishery Bill,” February 7, 1792.(Return)

10. Jonathan Elliott, The Debates in the Several State Conventions on the Adoption of the Federal Constitution (Washington, 1836), Vol. IV, p. 429, James Madison on “The Cod Fishery Bill,” February 7, 1792.(Return)

11.Joseph Story, Commentaries on the Constitution of the United States (Boston: Hilliard, Gray, and Company, 1833), Book III, pp. 712-713, Chapter XLIV, § 1009-1010.
Joseph Story, Commentaries on the Constitution of the United States (Boston: Charles C. Little and James Brown, 1851), Vol. II, pp. 612- 613, §1907-1908.(Return)

13. Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution (Washington, 1836), Vol. III, pp. 149-150, Patrick Henry, June 7, 1788; Vol. III, pp. 156, 161, 174, Patrick Henry, June 9, 1788, at the Virginia Ratifying Convention for the U. S. Constitution.(Return)

14. John Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution (Washington, 1836), Vol. III, pp. 271- 272, George Mason, June 11, 1788, at the Virginia Ratification Convention for the U. S. Constitution.(Return)

15. Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution (Washington, 1836), Vol. II, pp. 456-457, 481- 482, James Wilson, December 4, 1787, at the Pennsylvania Ratification Convention for the U. S. Constitution.(Return)

17. Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution (Washington, 1836), Vol. II, pp. 537- 538, 540, Thomas M’Kean, December 11, 1787.(Return)

18. Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution (Washington, 1836), Vol. III, p. 186, Richard Henry Lee, June 9, 1788, at the Virginia Ratification Convention for the U. S. Constitution.(Return)

20. James D. Richardson, Messages and Papers of the Presidents (Washington, D. C.: Government Printing Office, 1899), Vol. II, pp. 152- 155, James Monroe, “Views of the President of the United States on the Subject of Internal Improvements,” May 4, 1822.(Return)

27. Jonathan Elliott, The Debates in the Several State Conventions on the Adoption of the Federal Constitution (Washington, 1836), Vol. IV, pp. 528-529, “Virginia Resolutions of 1798,” December 21, 1798.(Return)

28. Thomas Jefferson, The Papers of Thomas Jefferson (Princeton: Princeton University Press, 2003), Vol. 30, p. 550, “Resolutions Adopted by the Kentucky General Assembly,” November 10, 1798, Jonathan Elliott, The Debates in the Several State Conventions on the Adoption of the Federal Constitution (Washington, 1836), Vol. IV, pp. 528-529, “Virginia Resolutions of 1798,” December 21, 1798.(Return)

29. Jonathan Elliott, The Debates in the Several State Conventions on the Adoption of the Federal Constitution (Washington, 1836), Vol. IV, p. 539, The Vermont House of Representatives, October 30, 1799.(Return)

30. See, for example, Jonathan Elliott, The Debates in the Several State Conventions on the Adoption of the Federal Constitution (Washington, 1836), Vol. IV, pp. 532, 537-539, declarations from the New Hampshire House of Representatives, June 14, 1799; the New York Senate, March 5, 1799; the Delaware House of Representatives, February 1, 1799; etc.(Return)

31. Jonathan Elliott, The Debates in the Several State Conventions on the Adoption of the Federal Constitution (Washington, 1836), Vol. IV, pp. 533-534, The Massachusetts Senate, February 9, 1799.(Return)

32. See, for example, Jonathan Elliott, The Debates in the Several State Conventions on the Adoption of the Federal Constitution (Washington, 1836), Vol. IV, pp. 537-538, the New York Senate, March 5, 1799.(Return)

33. Jonathan Elliott, The Debates in the Several State Conventions on the Adoption of the Federal Constitution (Washington, 1836), Vol. IV, pp. 532, 539, Delaware House of Representatives, February 1, 1799; Vermont House of Representatives, October 30, 1799; etc.(Return)

34. Jonathan Elliott, The Debates in the Several State Conventions on the Adoption of the Federal Constitution (Washington, 1836), Vol. IV, p. 534, The Massachusetts Senate, February 9, 1799.(Return)

38. George Washington, The Last Official Address of His Excellency General Washington to the Legislatures of the United States, to Which is Annexed a Collection of Papers Relative to Half-Pay, and Commutation of Half-Pay Granted by Congress to the Officers of the Army (Hartford: Hudson and Goodwin, 1783), p. 6.(Return)

39. George Washington, The Addresses and Messages of the Presidents of the United States, from 1789 to 1839 (New York: McLean and Taylor, 1839), p. 53, Proclamation, September 25, 1794.(Return)

40. George Washington, The Addresses and Messages of the Presidents of the United States, from 1789 to 1839 (New York: McLean and Taylor, 1839), p. 53, Proclamation, September 25, 1794.(Return)

41. James Madison, The Writings of James Madison, Comprising His Public Papers and His Private Correspondence, Including Numerous Letters and Documents Now For the First Time Printed, Gaillard Hunt, editor (New York:.G. P. Putnam’s Sons, 1908), Vol. VIII, p. 224, Fourth Annual Message to Congress, November 4, 1812.(Return)

44. John Adams, The Works of John Adams, Second President of the United States: With A Life of the Author, Notes and Illustrations, Charles Francis Adams, editor (Boston: Charles C. Little and James Brown, 1851), Vol. VI, p. 403.(Return)

45. Thomas Jefferson, The Writings of Thomas Jefferson, Andrew A. Lipscomb, editor (Washington, D.C.: The Thomas Jefferson Memorial Association, 1903), Vol. VIII, pp. 226-227, letter to General Knox, August 10, 1791. See also George Tucker, The Life of Thomas Jefferson; Third President of the United States; With Parts of His Correspondence Never Before Published, and Notices of His Opinions On Questions of Civil Government, National Policy, and Constitutional Law (London: Charles Knight and Co., 1837), Vol. I, pp. 400-401, Thomas Jefferson in a letter to General Knox.(Return)

53. Andrew Jackson, “President Jackson’s Proclamation Regarding Nullification,” Avalon Project, December 10, 1832 (at: http://avalon.law.yale.edu/19th_century/jack01.asp), where he says “This, then, is the position in which we stand. A small majority of the citizens of one State in the Union, have elected delegates to the State Convention: that Convention has ordained, that all the revenue laws of the United States, must be repealed, or that they are no longer a member of the Union. The Governor of that State has recommended to the Legislature the raising of an army to carry the secession into effect, and that he may be empowered to give clearances to vessels in the name of the State.”(Return)

58. James Madison, The Writings of James Madison, Gaillard Hunt, editor (New York: G. P. Putnam’s Sons, 1910), Vol. IX, pp. 573-607, “Notes on Nullification,” 1835-1836; these notes were written almost entirely in Madison’s own hand and revised by him with the aid of Mrs. Madison and his brother-in-law, John C. Payne.(Return)

65. While many southern apologists today argue that the slavery issue had nothing to do with secession, the secession documents of the southern seceding states prove exactly the opposite – that imminent abolition was the cause of their secession. To see these documents, go to “Confronting Civil War Revisionism: Why the South Went to War” (at: http://www.wallbuilders.com/LIBissuesArticles.asp?id=92).(Return)

68. George Washington, The Writings of George Washington, John C. Fitzpatrick, editor (Washington, D. C.: Government Printing Office, 1938), Vol. 26, pp. 483-496, Circular to the States, June 8, 1783.(Return)

69. William C. Rives, History of the Life and Times of James Madison (Boston: Little, Brown, and Company, 1866), pp. 626-628, correspondence between Alexander Hamilton and James Madison concerning possible secession or receding from the constitutional compact, Saturday and Sunday, July 1788.(Return)

75. John Quincy Adams, Address of John Quincy Adams, To His Constituents of the Twelfth Congressional District, At Braintree, September 17th, 1842 (Boston: J. H. Eastburn, Printer, 1842), p. 21.(Return)

76. “In the last resort, a remedy must be obtained from the people, who can, by the election of more faithful representatives, annul the acts of the usurpers.” James Madison, “The Federalist No. 44, Restrictions on the Authority of the Several States,” The Avalon Project, January 25, 1788 (at: http://www.constitution.org/fed/federa44.htm); see also, David Franklin Houston, A Critical Study of Nullification in South Carolina (New York: Longman, Greens and Co., 1896), pp. 20-21.(Return)